The workplace is not a private place, but people may bring their private information to work, sometimes without even realizing it. The rules on what an employee can expect to keep private – and what does not stay private – may not be what you expect. Here are three key takeaways to empower you to protect your privacy while on the job.
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The Bad News
Employees have no reasonable expectation of privacy in most areas of the workplace, so don’t expect the boss to respect your personal privacy. Employers generally have the right to monitor work-related activities. Additionally, there is no obligation to respect employee privacy on the job site with respect to personal phone calls, emails sent from personal accounts, and personal belongings—even in personal lockers or during break times or in the break room.
In the State of New York, section 52-c of the New York Civil Rights Act requires employers to provide written notice if they intend to e-monitor their employees, but the requirement is pretty weak. There is no prohibition on spying, just a requirement that the employer let workers know if it intends to spy. Additionally, there’s no private remedy if the employer does spy without notifying. Other jurisdictions may have similar rules, so speak with a workers’ rights attorney in your area to find out if there’s any protection against e-spying in your jurisdiction.
Be cautious about the type of personal information you share at work. Avoid sharing sensitive personal details, even with your work friends, during work hours.
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Medical Information
If you talk about your medical condition with your coworkers, the employer has no duty to keep that information confidential. If you don’t want people talking about it, don’t tell them.
Outside of a request for an accommodation, there is no duty for an employer to avoid disclosing medical information that an employee has volunteered. If you do request an accommodation or medical leave, don’t reveal what you need the accommodation for until that information is requested. Remember – if you volunteer it without being asked, the employer does not have to keep it private. The only information the employer has to keep private is medical information that it specifically requests from you.
Usually, once an employee requests an accommodation or medical leave, the employer will provide a request form with sections for the employee and the employee’s medical provider to fill out. It’s not a bad idea to mark the forms “CONFIDENTIAL” at the top. That goes for any medical information you provide to the employer as well. Try to make sure that any medical information is directed only to the person whose job it is to handle the accommodation request – usually this is a human resources employee.
Word to the wise, the medical information needed to handle an accommodation request can, and will, be disclosed to anyone the employer believes needs to have it for purposes of implementing the accommodation. So even though you might not want your direct supervisor to know about your personal medical needs, that person may be looped in when it comes to determining how to accommodate your condition.
Bottom line, don’t talk about medical information unless you need to request an accommodation. And then, be very sparing about what you tell and whom you tell it to.
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Anti-Union Surveillance
One area that is often litigated is whether surveillance is “coercive,” thereby crossing the line into a violation of the National Labor Relations Act [“NLRA”]. Under the NLRA, employees have the right to engage in concerted activity for purposes of mutual aid and protection. If surveillance—for example, cameras in the breakroom, or supervisors butting in to an employee-owned Slack group—could reasonably be construed as intimidating employees so they will not discuss terms and conditions of employment, then the surveillance may constitute an Unfair Labor Practice [“ULP”] under the NLRA. So, if it seems like the employer is trying to stop employees from, say, discussing wages or talking to Union reps, then the action may constitute illegal surveillance and should be reported to the National Labor Relations Board [“NLRB”]. This tends to be a very fact-specific inquiry, so if you’re not sure whether the spying constitutes illegal surveillance, it’s a good idea to talk to a Union representative or workplace attorney.
Conclusion:
Generally speaking, don’t reveal anything in the workplace that you wouldn’t tell a newspaper reporter. But there are minimal privacy protections in specific workplace contexts. Always talk to a workplace attorney if you need to understand the parameters of your workplace privacy.
